DIPPOLITO v. THE UNITED STATES OF AMERICA et al
Filing
55
OPINION FILED. Signed by Judge Robert B. Kugler on 12/21/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
FRANK DIPPOLITO,
:
:
Plaintiff,
:
Civ. No. 13-0175 (RBK) (JS)
:
v.
:
:
OPINION
UNITED STATES OF AMERICA, et al., :
:
Defendants.
:
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Frank Dippolito (“Plaintiff”) is a former federal prisoner who was previously
incarcerated at the Federal Correctional Institution (“F.C.I.”) Fort Dix, in Fort Dix, New Jersey,
at the time he filed this action. In January, 2013, Plaintiff submitted his pro se civil rights
complaint pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). On July 15, 2013, Plaintiff's application to proceed in forma pauperis was granted. (ECF
No. 4.)
The Defendants have moved to dismiss the Second Amended Complaint under FED. R.
CIV. P. 12(b)(6) for failure to state a claim upon which relief may be granted in two separate
motions. For the reasons set forth below, Defendants’ the American Correctional Association
(“ACA”) and James A. Gondles, Jr. motion to dismiss will be granted. The remaining
Defendants motion to dismiss will be granted in part and denied in part.
II. FACTUAL BACKGROUND
Plaintiff brings Bivens claims under the Eighth Amendment and First Amendment to the
United States Constitution. Under the Eighth Amendment, Plaintiff alleges that the conditions
present at F.C.I. Fort Dix, taken together, amount to unconstitutional cruel and unusual
punishment. Under the First Amendment, Plaintiff alleges that a number of Defendants engaged
in retaliatory conduct after Plaintiff exercised his right to file grievances with the prison
administration. Plaintiff also advances claims under the Federal Tort Claims Act (“FTCA”) and
the Racketeer Influenced Corrupt Organizations Act (“RICO”) stemming from the same conduct,
as well as allegedly collecting illegal profits by detaining inmates without cause.
A. Eighth Amendment Claims
Plaintiff alleges a number of circumstances that, he argues, amount to “cruel and unusual
punishment” under a conditions of confinement theory of liability under the Eighth Amendment.
First, Plaintiff alleges that F.C.I. Fort Dix has a “serious asbestos problem and lead paint issues.”
(ECF No. 42 ¶ 44.) He then claims that the wardens had knowledge of this problem and directed
Defendants Carroll, Robinson, and Bullock to fix it, but they did nothing. (Id.) Plaintiff also
alleges that the water the inmates are made to drink is dangerously polluted. (Id. ¶ 47.) Plaintiff
next claims that the personal address (“PA”) system at F.C.I. Fort Dix is perilously loud. (Id. ¶¶
47-48.) The “test results” Plaintiff assumed would confirm his suspicions of the PA system came
back negative, however, and Plaintiff now argues those results were “falsified by Defendant
Holdren, with the knowledge of Defendants Hutches and Nichols.” (Id. ¶ 49.) He also charges
that the conditions in the “5800 block … dining hall” during the government sequester amounted
to unconstitutional overcrowding because one of the two dining halls had to close, effectively
doubling the population of the lone dining hall. (Id. ¶ 52.) In addition to the dining hall, Plaintiff
complains that cells are routinely double-bunked and only have two windows and one ceiling
fan. This, combined with F.C.I. Fort Dix’s policy against personal fans and the “jet exhaust
fumes” from nearby McGuire Air Force Base, allegedly makes for poor ventilation and
2
unsanitary conditions, especially in warmer months. (Id. ¶¶ 56-60.) Plaintiff also complains that
F.C.I. Fort Dix fails to outfit inmates with seasonally appropriate dress, i.e., “rain gear, winter
coat, etc.” (Id. ¶ 62.) In terms of medical care, Plaintiff claims that he requested a cancer
screening for his lungs but never received one. (See ECF No. 13-1, Ex. VV.) Plaintiff asserts that
all of these, taken together, amount to conditions of confinement that fun afoul of the Eighth
Amendment’s prohibition on cruel and unusual punishment.
B. First Amendment Claims
Plaintiff also makes a number of allegations under a First Amendment retaliation theory.
Plaintiff argues that, in retaliation for (1) filing grievances concerning the administration at F.C.I.
Fort Dix, and (2) helping other inmates with their own legal papers, Defendants Bullock, Carroll,
Alexander, Anderson, Harwick and Daniels stripped Plaintiff of his prison job assignment, filed
bogus incident reports against him eventually leading to a hearing before a “kangaroo court” and
a ninety-day loss of phone, e-mail and visitation privileges, improperly denied his requests for a
bottom bunk, intimated in front of other inmates that Plaintiff was a “rat,” and improperly denied
requests to be transferred to a halfway-house under the Second Chance Act. (Id. ¶¶ 83-125.)
C. FTCA and RICO Claims
Plaintiff also restates his prior Eighth Amendment allegations as actionable under the
FTCA and brings them against all thirty-one individual Defendants, the BOP, and the United
States. (See ECF No. 42 ¶¶ 78-81.)
Plaintiff also alleges that all thirty-one individual Defendants, plus Defendants American
Correctional Association (“ACA”) and James A. Gondles, Jr., (“Gondles”) are liable underRICO
for “trad[ing] in a commodity [they] identify as inmates, and use[] that commodity to reap profits
and rewards.” (ECF No. 42 ¶ 127.)
3
III. PROCEDURAL BACKGROUND
On January 8, 2013, Plaintiff filed a Complaint with the Court in which he alleged that
the Bureau of Prisons (“BOP”), the United States, and thirty-one named individuals violated
rights afforded to Plaintiff by the First and Eighth Amendments to the United States Constitution
under Bivens, as well as the FTCA and RICO. (See ECF No. 1.) On or about April 9, 2014,
Plaintiff filed an Amended Complaint with the Court in which he added more detail to his
original allegations. (See ECF No. 13.) On October 21, 2014, Defendants United States, Bureau
of Prisons (“BOP”), Lappin, Dodril, Conley, Zickefoose, Hollingsworth, Fitzgerald, Hudgins,
Holdren, Lawhorn, Dynan, Nichols, Hazelwood, Sutherland, McLaughlin, Carroll, Robinson,
Bullock, Alexander, Hardwick, Yeoman, Daniels, Lemyre, Donohue, Kenney, Watts, and Holder
(“Defendants”) filed an Answer with the Court. (See ECF No. 23.) Subsequently, on December
31, 2014, Defendants filed a Motion for Judgment on the Pleadings pursuant to FED. R. CIV. P.
12(c). (See ECF No. 29.) On April 17, 2015, the Court granted Plaintiff leave to file a second
Amended Complaint, which he did. (See ECF Nos. 42, 48.) On May 14, 2015, the above listed
Defendants filed a motion to dismiss Plaintiff’s second Amended Complaint pursuant to FED. R.
CIV. P. 12(b)(6). (See ECF No. 52.) In their motion to dismiss, Defendants argue that a number
of named Defendants must be dismissed from Plaintiff’s First and Eighth Amendment claims
due to lack of personal involvement; that a number of Plaintiff’s First Amendment claims are
untimely; that all claims arising under the FTCA must be dismissed because only the United
States can be a proper defendant under the FTCA and the FTCA does not allow suits for
constitutional torts; and that all claims arising under the RICO Act must be dismissed for lack of
standing. (ECF No. 52-1.)
4
The ACA and Gondles are also included as Defendants solely on Plaintiff’s RICO Act
claim. (ECF No. 42 at 46.) Defendants ACA and Gondles have filed a separate motion to dismiss
under 12(b)(6) that will also be analyzed as part of this Opinion, part IV.D, infra. (See ECF No.
50.) Defendants ACA and Gondles argue, similarly to the above mentioned Defendants, that
Plaintiff does not have standing to bring a RICO claim and thus the claim against them must be
dismissed with prejudice. (Id. at 5-6.)
On June 15, 2015, Plaintiff filed a response in opposition to Defendants’ motions to
dismiss. (See ECF No. 53.) For the following reasons, Defendants the United States, BOP, and
thirty-one individual defendants’ motion will be granted in part and denied in part and
Defendants ACA and Gondles’ motion will be granted.
III. STANDARD OF REVIEW
A. 12(b)(6) Motion to Dismiss
In considering a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the
court must “ accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008) (internal quotations omitted). However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to show “that the pleader is entitled to relief” as required by Rule
8(a)(2). Id. at 679.
5
B. Bivens Actions
Bivens is the federal counterpart to 42 U.S.C. § 1983. See Walker v. Zenk, 323 F. App'x.
144, 145 n.1 (3d Cir. 2009) (per curiam) (citing Egervary v. Young, 366 F.3d 238, 246 (3d Cir.
2004)). In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation of the right
was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483,
491 (3d Cir. 2006) (stating that under Section 1983 “an individual may bring suit for damages
against any person who, acting under color of state law, deprives another individual of any
rights, privileges, or immunities secured by the United States Constitution or federal law,” and
that Bivens held that a parallel right exists against federal officials); see also Collins v. F.B.I.,
No. 10–3470, 2011 WL 1627025, at *6 (D.N.J. Apr. 28, 2011) (“The Third Circuit has
recognized that Bivens actions are simply the federal counterpart to § 1983 claims brought
against state officials' and thus the analysis established under one type of claim is applicable
under the other.”) (internal quotation marks and citations omitted).
IV. DISCUSSION
A. Defendants are not “persons” under Bivens and thus are not amenable to suit in their
official capacities.
Plaintiff asserts all claims against the United States, the BOP, and all individual
Defendants both in their official and individual capacities. Defendants first argue that they are
not amenable to suit in their official capacities under Bivens because, as either federal agencies
themselves or employees of either the BOP, F.C.I. Fort Dix, or the Department of Justice, they
are not “persons” under the law. The Court agrees.
To be liable under Bivens, a defendant must be a “person.” The Third Circuit held in
Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979), that Bivens claims against the United
6
States and its agents are barred by sovereign immunity unless such immunity is explicitly
waived. Thus, the United States and its agents are not “persons” and thus not amenable to suit
under Bivens. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61. 72 (2001); Webb v. Desan,
250 F. App’x 468, 471 (3d Cir. 2007).
Here, the United States and BOP are immune from suit under Bivens as they are
themselves arms of the federal government and have not explicitly waived their sovereign
immunity. In addition, all individual Defendants are current or former employees of either the
BOP, F.C.I. Fort Dix, or the United States Department of Justice - all federal entities and
therefore immune from suit under Bivens in their official capacities. See Lewal v. Ali, 289 F.
App’x 515, 516 (3d Cir. 2008) (“An action against government officials in their official
capacities constitutes an action against the United States; and Bivens claims against the United
States are barred by sovereign immunity, absent an explicit waiver.”) (citing FDIC v. Meyer, 510
U.S. 471, 483 (1994); see also Webb, 250 F. App’x at 471 (affirming the dismissal of a Bivens
claim against the United States, BOP, and seven named individuals in their official capacities).
Because Defendants are all agents of federal entities, a Bivens action cannot be maintained
against them in their official capacities and thus the Complaint is barred by sovereign immunity.
Therefore, all Bivens claims within Plaintiff’s Second Amended Complaint against the United
States, the BOP, and all thirty-two (32) individual Defendants in their official capacities are
dismissed with prejudice.
B. Eighth Amendment Claims against All Individual Defendants
In his Complaint, Plaintiff names thirty-one Defendants to be sued in their individual
capacities for violating his Eighth Amendment rights against cruel and unusual punishment for
sufficiently serious conditions of confinement. (See ECF No. 42 at 25.) Plaintiff alleges that
7
F.C.I. Fort Dix was unconstitutionally “overcrowded, lack[ed] adequate sanitation and
ventilation, expose[d] prisoners to asbestos, polluted water and lead paint, violated … noise
levels, and offer[ed] inadequate medical treatment.” (Id.)
Prison conditions can run afoul of the Eighth Amendment’s proscription on cruel and
unusual punishment by either ignoring “evolving standards of decency” or involving
“unnecessary and wanton infliction of pain.” See Rhodes v. Chapman, 452 U.S. 337, 346 (1981)
(citing Gregg v. Georgia, 428 U.S. 153, 171 (1976); Trop v. Dulles, 356 U.S. 86, 101 (1958)).
To assert an Eighth Amendment claim resulting from an inmate’s conditions of confinement, a
prisoner must first show that the alleged deprivation is “sufficiently serious” and that the prisoner
has been deprived of the “minimal civilized measure of life's necessities.” Farmer v. Brennan,
511 U.S. at 834 (1994). A prisoner must then show that prison officials recognized the
deprivation and demonstrated “deliberate indifference” to the prisoner’s health or safety. Id.
Only “extreme deprivations” are sufficient to present a claim for unconstitutional conditions of
confinement. See Fantone v. Herbik, 528 F. App’x 123, 127 (3d Cir. 2013) (quoting Hudson v.
McMillian, 503 U.S. 1, 8–9 (1992)).
Here, of the thirty-one individual defendants, twenty-one can be dismissed from the
Complaint due to deficiencies in the pleadings. In order for the Second Amended Complaint to
proceed against any Defendant under an Eighth Amendment conditions of confinement theory,
Plaintiff must allege in his complaint that the defendant had personal involvement in the
condition that is now the source of the plaintiff’s allegations. To wit, “[i]n order for liability to
attach under [Bivens], a plaintiff must show that a defendant was personally involved in the
deprivation of his federal rights.” Fears v. Beard, 532 F. App’x 78, 81 (3d Cir. 2013) (per
curiam) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “[L]iability cannot be
8
predicated solely on the operation of respondeat superior. Personal involvement can be shown
through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted).
Plaintiff has not alleged, in either his Second Amended Complaint or the Exhibits
attached thereto, any personal involvement or actual knowledge of the following twenty-one
named Defendants: Lappin, Dodrill, Conley, Fitzgerald, Hudgins, Lawhorn, Nichols,
Hazelwood, Sutherland, Harwick, Yeomen, Donahue, Lemyre, Smeylk, Anderson, Samuels,
Kenney, Watts, Croker, McLaughlin and Holder. Plaintiff appears to base the aforementioned
Defendants’ liability on respondeat superior due to their positions as associate wardens, BOP
officials, and DOJ officials. Accordingly, Plaintiff’s Second Amended Complaint fails to state a
claim against the abovesaid Defendants as Bivens liability cannot be premised solely on the
theory of respondeat superior. See Evancho, 423 F.3d at 353; Cardona v. Warden--MDC
Facility, No. 12-7161, 2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013); see also Iqbal, 556 U.S.
at 678 (holding that a pleading “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation”). Therefore, because there is neither an allegation of personal direction
nor one of actual knowledge, Plaintiff’s Eighth Amendment claims against the above mentioned
twenty-one Defendants will be dismissed without prejudice.
However, because Plaintiff does allege personal involvement and/or actual knowledge
against Defendants Norwood, Zickefoose, Hollingsworth, Holdren, Dynan, Daniels, Carroll,
Robinson, Bullock, and Alexander, the motion to dismiss the Eighth Amendment claim as to
these defendants will be denied.
9
C. Federal Tort Claims Act Claims against All Defendants
Plaintiff next argues that all thirty-one individual Defendants, the BOP, and the United
States are similarly liable under the FTCA, 29 U.S.C. § 1346. (ECF No. 42 at 27.) The FTCA
reads, in pertinent part:
... the district courts, together with the United States District Court of the Virgin
Islands shall have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January 21, 1945, for
injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred (emphasis added).
See 28 U.S.C. § 1346(b).
As is clear in the language of the statute, the only proper defendant in an FTCA case is
the United States. Therefore, Plaintiff’s FTCA claims against all individual Defendants and the
BOP are dismissed with prejudice. See Dambach v. United States, 211 F. App’x 105, 108 (3d
Cir. 2006).
As against the United States, Plaintiff’s claim can also be dismissed without prejudice.
Plaintiff’s FTCA claim is premised upon a constitutional tort – violating the Eighth
Amendment’s proscription on cruel and unusual punishment. (See ECF No. 42 ¶¶ 79, 80.)
Defendants point out, correctly, that the United States is not liable for constitutional tort claims
under § 1346(b). See Dambach, 211 F. App’x at 107 (citing FDIC v. Meyer, 510 U.S. 471, 47778 (1994) (holding that the FTCA does not cover constitutional torts, but rather state law torts
that would be actionable if the United States were “a private person”)). Because here, Plaintiff
complains only of a constitutional tort,1 namely a violation of the Eighth Amendment’s
Though Plaintiff uses the word “negligent” in his Complaint, his only reference to law is to the
“the laws of the United States.” (ECF No. 42 ¶ 79.) Additionally, in his Response to Defendants’
1
10
prohibition on cruel and unusual punishment, Plaintiff’s FTCA claims against the United States
are dismissed without prejudice.2 See Webb, 250 F. App’x at 471 (“State law provides the source
of substantive liability under the FTCA. Because federal law is the source of liability for the
deprivation of a federal constitutional right, the United States is not liable under § 1346(b) for
constitutional tort claims.”) (internal citations omitted).
D. Plaintiff’s Civil RICO Claims against All Individual Defendants, the ACA, and Gondles
Plaintiff’s Civil RICO claims must be dismissed against all individual Defendants, as
well as Defendants ACA and Gondles, because Plaintiff lacks standing to bring such a claim. In
order to have standing to bring a civil RICO action, a plaintiff must allege (1) that his “business
or property” suffered an injury; and (2) that said injury was proximately caused by defendants’
18 U.S.C. § 1962 violations. See 18 U.S.C. § 1964(c); Maio v. Aeitna, Inc., 221 F.3d 472, 483
(3d Cir. 2000). Here, Plaintiff does not allege any specific loss to any business or property, but
rather generally alleges that the taxpayer dollars intended to benefit inmates are “funneled to
government agencies instead,” (ECF No. 42 ¶ 132), that various prison officials were
“skimming” cash from the prison commissary, (Id. ¶ 136), and that prison officials were
otherwise receiving “under the table consideration.” (Id. ¶ 137.) Plaintiff also joins Defendants
ACA and Gondles in this claim because they accredit and therefore “lend legitimacy” to F.C.I.
Fort Dix. (Id. ¶ 129.)
Plaintiff argues in his Response to Defendants’ motions that his job as part of the “AM
yard crew” afforded him an interest in property that can be redressed under with civil RICO.
Motion, Plaintiff specifically characterizes his FTCA action as redress “for constitutional torts.”
(ECF No. 53 at 16.)
2
Defendants also argue in their motion that Plaintiff’s “loud noise” claim is untimely. (See ECF
No. 52-1 at 33.) The Court need not reach this argument as all of Plaintiff’s FTCA claims against
the United States are dismissed due to the constitutional nature of the tort allegations.
11
(ECF No. 53 at 17.) Plaintiff misunderstands what is meant by “business or property.” To
establish the requisite injury for civil RICO purposes, a plaintiff must demonstrate a “concrete
financial loss” in the form of an “ascertainable out-of-pocket” deprivation. See Magnum v.
Archdiocese of Phila., 253 F. App’x 224, 226 (3d Cir. 2007); Sarpolis v. Tereshko, 26 F. Supp.
3d 497, 424 (E.D. Pa. 2014).
Because Plaintiff does not allege any specific loss to his business or property, he does not
have standing under 18 U.S.C. § 1964. See Magnum, 253 F. App’x at 226 (holding that an
unliquidated personal injury claim is too speculative to confer standing under the “injury to
business or property” provision and noting that “a showing of injury requires proof of a concrete
financial loss”). Therefore, because Plaintiff lacks standing under 18 U.S.C. § 1964, Plaintiff’s
civil RICO claims are dismissed with prejudice as to all Defendants, including Defendants ACA
and Gondles.
E. First Amendment Claims against Defendants Bullock, Carroll, Daniels, Alexander,
Harwick, and Anderson
Plaintiff also brings an action for retaliation rooted in the First Amendment against
individual Defendants Bullock, Carroll, Daniels, Alexander, Harwick, and Anderson in their
individual capacities. (See ECF No. 42 at 29.) Plaintiff alleges that the above-named Defendants
were complicit in retaliating against Plaintiff for filing grievances with the administration by: (1)
filing warrantless incident reports against him, leading to loss of phone, e-mail, and visitation
privileges during the holidays; (2) improperly denying him a bottom bunk; (3) improperly
denying his requests to transfer to a halfway-house under the Second Chance Act; and (4) openly
intimating that Plaintiff is a “rat” in front of other inmates, thereby endangering his life.
Defendants first argue in their motion to dismiss that “most of” Plaintiff’s First
Amendment claims are untimely and thus must be dismissed with prejudice. (See ECF No. 52-1
12
at 21.) The Court agrees. For Bivens actions arising in New Jersey, the statute of limitations is
two years. See McGill v. John Does A-Z, 541 F. App’x 225, 227 (3d Cir. 2013). This means that,
for an action under Bivens to be timely, a plaintiff must bring it within two years of when he has
a “complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388 (2007); see also
Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (“A Bivens claim
accrues when the plaintiff knows, or has reason to know, of the injury that forms the basis of the
action.”).
Plaintiff filed his original complaint on January 8, 2013.3 (See ECF No. 1.) This means,
to be timely, the conduct forming the basis of Plaintiff’s claims must have taken place on or after
January 8, 2011. However, Defendant Bullock allegedly stripping Plaintiff of his prison job
occurred in October 2010, making this claim untimely. In addition, the incident report that led to
Plaintiff’s loss of phone, e-mail, and visitation privileges for 90 days was filed on December 21,
2010. (See ECF No. 13-1, Ex. E.) The adjudication and punishment stemming from that incident
report then occurred on December 22, 2010, meaning the claim stemming from these events is
untimely as well. (See id., Ex. P.) One week after that, on January 5, 2011, Defendant Daniels
allegedly intimated that Plaintiff was a “rat” to other inmates, thus putting him in physical
danger. (See ECF No. 42 ¶¶ 100-102.) All of this conduct occurred before the cut-off date of
January 8, 2011, and thus all claims stemming from this conduct are untimely.
Therefore, because Plaintiff’s abovementioned claims are untimely, Plaintiff’s retaliation
claims stemming from the December 2010 incident report, the adjudication of that report,
Though Plaintiff’s Complaint was filed on January 11, 2013, the record indicates that he gave
the Complaint to prison officials to mail on January 8, 2013. The Court is cognizant of both the
instruction to construe pro se complaints liberally, see Haines v. Kerner, 404 U.S. 519 (1972),
and the so-called “prisoner mailbox rule.” See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998)
(noting that, under the federal “prisoner mailbox rule,” a document is deemed filed on the date it
is given to prison officials for mailing).
3
13
Plaintiff’s loss of his prison job, and Defendant Daniels’ “rat” comment will be dismissed with
prejudice as to all Defendants.4 See Peguero v. Meyer, 520 F. App’x 58, 61 (3d Cir. 2013)
(noting that dismissal for failure to state a claim is proper once the two-year period of limitations
has run).
Defendants next argue that even on the admittedly timely retaliation claims of (1)
improper denial of a bottom bunk, and (2) improper denial of a transfer to a halfway-house under
the Second Chance Act, a number of the named Defendants are not alleged to have had any
personal involvement and thus can be dismissed from the suit. As with the Eighth Amendment
conditions of confinement claims, supra, First Amendment retaliation claims must allege
personal direction and/or actual knowledge on the part of named defendants. See Evancho, 423
F.3d at 354. Here, the only named Defendants alleged to have had any personal involvement
with the two remaining retaliation claims are Defendants Bullock and Carroll. Therefore,
Plaintiff’s remaining First Amendment claims are dismissed without prejudice as to Defendants
Daniels, Alexander, Harwick, and Anderson.
As to the remaining claims of (1) improper denial of a bottom bunk, and (2) improper
denial of a transfer to a halfway-house under the Second Chance Act, even though neither of
these actions is a constitutional violation by itself, “…government actions, which standing alone
do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial
part by a desire to punish an individual for the exercise of a constitutional right.” Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001) (internal citations omitted). To wit, a prisoner alleging that
prison officials have retaliated against him for exercising his constitutional rights must prove
Plaintiff makes no argument in his Response to Defendants’ Motion that his circumstances
warrant any kind of equitable tolling. (See ECF No. 53 at 13.) As such, equitable tolling will not
be applied. See Wallace v. Kato, 549 U.S. 384, 396 (2007) (“Equitable tolling is a rare remedy to
be applied in unusual circumstances”).
4
14
that: 1) the conduct in which he was engaged was constitutionally protected; 2) he suffered
“adverse action” at the hands of prison officials; and 3) his constitutionally protected conduct
was a substantial or motivating factor in the decision to discipline him. See Carter v. McGrady,
292 F.3d 152, 157-58 (3d Cir. 2002) (citing Rauser, 241 F.3d at 334). Conduct is constitutionally
protected when it encompasses a protected liberty interest. See Bullock v. Buck, 611 F. App’x
744, 747 (3d Cir. 2015).
Plaintiff claims that he was retaliated against for filing grievances with the
administration. The filing of grievances with a prison administration is a constitutionally
protected First Amendment right. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Smith
v. Mensinger, 293 F. 3d 641, 653 (3d Cir. 2002). Plaintiff then alleges that he suffered adverse
actions, i.e., not getting a bottom bunk and not being transferred to a halfway-house. (See ECF
No. 42 at 34.) Defendants included a number of Declarations and other documents purporting to
show that Plaintiff’s protected conduct was neither a substantial nor a motivating factor in
denying him both a bottom bunk and a transfer to a halfway-house. (See ECF No. 52-4 et seq.)
However, as Defendants filed a motion to dismiss under FED. R. CIV. P. 12(b)(6), none of
Defendants’ exhibits can be considered at this time as they exist outside the Complaint. See
Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002) (noting that courts are
not permitted to look outside “the pleading which is attacked” in a 12(b)(6) motion) (internal
citations omitted). Accordingly, as Plaintiff has adequately pled that he was engaged in protected
conduct and suffered an adverse action, as well as the fact that Defendants rely on documents
outside of the Complaint to argue that Plaintiff’s constitutionally protected conduct was not a
substantial or motivating factor in his request denials, Defendants’ motion to dismiss this
retaliation claim against Bullock and Carroll will be denied.
15
F. Remaining Claims and Defendants
Plaintiff’s remaining claims are: (1) a First Amendment retaliation claim against
Defendants Bullock and Carroll for improperly denying Plaintiff a bottom bunk, and improperly
denying Plaintiff a transfer to a halfway-house under the Second Chance Act; and (2) an Eighth
Amendment conditions of confinement claim against Defendants Norwood, Zickefoose,
Hollingsworth, Holdren, Dynan, Robinson, Bullock, Carroll, and Alexander.
VI. CONCLUSION
Defendants’ ACA and Gondles motion to dismiss the Second Amended Complaint is
granted and plaintiff’s RICO claims against them are dismissed with prejudice. The remaining
Defendants’ motion to dismiss is granted in part and denied in part. Defendants’ motion is
granted as to Plaintiff’s Eighth Amendment claims against Defendants Lappin, Dodrill, Conley,
Fitzgerald, Hudgins, Lawhorn, Nichols, Hazelwood, Sutherland, Harwick, Yeomen, Donahue,
Lemyre, Smeylk, Anderson, Samuels, Kenney, Watts, Croker, McLaughlin and Holder.
Defendant’s motion to dismiss is denied on Plaintiff’s Eighth Amendment claim against
Defendants Norwood, Zickefoose, Hollingsworth, Holdren, Dynan, Daniels, Carroll, Robinson,
Bullock, and Alexander.
Defendants’ motion to dismiss is granted on Plaintiff’s First Amendment retaliation
claims stemming from (1) stripping Plaintiff of his prison job, (2) Defendant Daniels’ calling
Plaintiff a “rat” in front of other inmates, (3) the December 2010 incident report, and (4) the
adjudication and punishment stemming from the December 2010 incident report as to all
Defendants. Additionally, Defendants Alexander, Anderson, Daniels and Harwick are dismissed
from the two remaining First Amendment claims, i.e., retaliation against protected conduct in the
form of (1) improperly denying Plaintiff a bottom bunk, and (2) improperly denying Plaintiff a
16
transfer to a halfway-house under the Second Chance Act, for lack of personal involvement.
Defendants’ Bullock and Carroll’s motion to dismiss the First Amendment retaliation claim
arising from the above mentioned conduct is denied.
Defendants’ motion to dismiss is also granted on all of Plaintiff’s claims arising under
both the FTCA and RICO as to all Defendants with prejudice, except Plaintiff’s FTCA claim
against the United States which is dismissed without prejudice.
An appropriate order will be entered.
DATED: December 21, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?